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I have a question regarding the termination clause in my…

Hi Pearl, I have...

Hi Pearl, I have a question regarding the termination clause in my employment contract. I was made redundant last Thursday 15th March at 5pm. The day before my probation period ended on Friday 16th March. I've not been paid out the standard pay in lieu of 1 weeks notice. The advice I'm seeking is to determine if the termination clause in my employment contract is enforceable which is 2 months notice or payment in lieu of notice. As the probation period in my contract is defined as 5 months, but then not actioned or referenced back to the legislation for termination during probation. My question is, does the termination clause of 2 months notice supersede the termination during probation?

Lawyer's Assistant: Have you discussed the termination with a manager or HR? Or with a lawyer?

Its a small company so there is no HR. There is only a CFO. I've made equiries with legal aid, the Fair Work Ombudsman. I'm asking if I have a right to lodge a case to fair work. I've not formally engaged with a lawyer at present.

Lawyer's Assistant: Are you an "at will" employee? Do you belong to a union?

I'm not sure what 'at will' means but I don't belong to a Union. I work in corporate learning and development I wa a state manager and I am above award wage. What are my rights in this case?

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I've not been paid the statutory 1weeks pay in Leiu of notice and I've also not been reimbursed for expenses incurred during employment which are also defined and actioned in my contract (mobile and internet payments per month)

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Customer reply replied 3 months ago
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Customer reply replied 3 months ago
Legal outcome I am seeking:
The outcome I am seeking is the enforced payment of my 2-month termination notice period as per the termination clause expressed and actioned in my employment contract.Case for the argument:
The contract defines the qualifying period as 5 months, but fails to action any specific term in the contract relating to the qualifying period against standard employment legislation.I argue that the statutory term of probation is superseded by the contractual term of termination of employment and the contract does not have any term regarding qualifying period other than a definition that is not used in the rest of the agreement. Therefore two months pay in lieu of notice should be paid.
Answered in 4 hours by:
3/23/2018
Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,719
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Hi, I am Leon, a NSW Solicitor. I am reviewing your question and will reply again in a moment.

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Good Evening

You are not terminated but made redundant.

As you have not work more than 1 year they only have to give you 1 weeks notice

https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/minimum-workplace-entitlements/notice-of-termination-and-redundancy-pay#notice-of-termination

A redundancy is not a termination it is when the job no longer exists.

They are relying on the act.

You have to be paid 1 weeks notice if they ask you t leave immediately or if they want you to work they only have to give you 1 weeks notice and you work it and leave after the week.

If you wish to have a phone call to discuss this in more detail please elect a call or I can send you a request.

I hope this makes sense and is of assistance. If you have found my answer to be helpful, please rate me five stars so I can get paid for my services to you. You rating my work 5 stars allows me to continue to provide a service to those who require it.

I am happy for you to ask further questions on anything you wish more detail on.

Let me know if I have answered your question today.

Regards

Leon

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Customer reply replied 3 months ago
Hi Leon. Thanks so much for your reply.
I still feel like there’s a legal loophole because there’s no reference to the employment ACT in my contract. So can’t I argue, in the absence of reference to the ACT during the 5 month qualifying period, the termination of employment clause stated in the contract supersedes the ACT? I’ve attached a copy of my employment contract. Do you know of any legal presendence around this?Further info:Start Date: Monday 16th October 2017
Termination 5pm Thursday 15th March 2018
Qualifying Period – 5 Months. Ended on Friday 16th March 2018
Current Status of situation:
1. No notice given at the time of termination.
2. 1 weeks pay, in lieu of notice has NOT been paid as per the Employment Legislation.
3. Reimbursement of Expenses during employment with Easy A are to the value of $1920 which has not yet been paid. Expense spreadsheet and receipt copies were provided to them for payment. They have not indicated when and if they will pay.
4. Salary paid up until the date of termination. Leave in arrears was deducted, so only received payment of $2,512.58 instead of normal bi monthly salary of $4071.00
5. Laptop and laptop accessories yet to be handed back over to employer. I have no access to Easy A Laptop. My user profile and access had been removed immediately after termination.I would appreciate a follow up call at a time of your convenience. Next week?Again your advice is appreciated.Warm regards, *****:(###) ###-####E:***@******.***

Good Morning

The Fair Work Act applies to all employees in Australia and it does not have to be referred in your contract.

Because your contract makes no mention of redundancy, the Act applies.

The issue is you are not terminated. You are made redundant. They are both very different.

A termination means you are not suitable for the job but the job is there to be filled by another party.

A redundancy is when the job no longer exists and they have no position for you.

If it is not a genuine redundancy then it may be unfair dismissal but you have not been with them long enough to have the rights under the law.

You can sue for the costs you have incurred.

If they told you that you are redundant and to leave immediately then you also have to be paid the week in lieu.

They also have to pay you any accrued annual leave.

To get reimbursed and get paid you have to claim though the Courts. In NSW this can be done through the Chief Industrial Magistrates Court, being part of the local court.

http://www.localcourt.justice.nsw.gov.au/Pages/about_us/cim_court.aspx

They have a right to have their equipment returned and you should make an effort to return the laptop.

If you believe it is not a redundancy you can argue that with Fair Work. If it is found the job is still there and you have been terminated you can then argue you have not been given appropriate notice and argue the 2 months notice as per the agreement.

But you have to have evidence that the job is still there. e.g. they are advertising the position would be excellent evidence.

I hope this makes sense and is of assistance. If you have found my answer to be helpful, please rate me five stars so I can get paid for my services to you. You rating my work 5 stars allows me to continue to provide a service to those who require it.

I am happy for you to ask further questions on anything you wish more detail on.

Let me know if I have answered your question today.

Regards

Leon

Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 46,719
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Verified
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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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